Exhibit 1.1
$1,100,000,000 Floating Rate
Senior Notes Due 2009
$1,100,000,000 5.700% Senior
Notes Due 2011
CAPITAL ONE FINANCIAL
CORPORATION
UNDERWRITING
AGREEMENT
September 5,
2006
J.P. Morgan Securities
Inc.
Credit Suisse Securities
(USA)LLC
Deutsche Bank Securities
Inc.
As Representatives of the
several
Underwriters named in Schedule I
hereto,
c/o J.P. Morgan Securities
Inc.
270 Park Avenue
New York, New York 10017
Dear Sirs:
Capital One Financial Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell $1,100,000,000 principal amount of its Floating Rate
Senior Notes due 2009 (the “Floating Rate Notes”) and
$1,100,000,000 principal amount of its 5.700% Senior Notes due 2011
(the “Fixed Rate Notes,” and together with the Floating
Rate Notes, the “Securities”) to the several
underwriters named in Schedule I hereto (the
“Underwriters”), for which you are acting as
representatives (the “Representatives”). The Securities
are to be issued pursuant to the provisions of a Senior Indenture
dated as of November 1, 1996 (the “Senior
Indenture”) between the Company and BNY Midwest Trust Company
(as successor to Harris Trust and Savings Bank), as Trustee (the
“Trustee”).
1. Registration Statement and
Prospectus . The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-133943) under
the Securities Act of 1933, as amended (the “Securities
Act”) in respect of its debt securities, shares of its
preferred stock, $0.01 par value, depositary shares, shares of its
common stock, $0.01 par value, its stock purchase contracts, equity
units and trust preferred securities that may be issued by a
related trust (as amended through the date of this agreement, being
herein referred to as the “Registration Statement”).
Such Registration Statement has been declared effective by the
Commission. The Registration Statement contains a base prospectus
in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement (the
“Base Prospectus”), to be used in connection with the
public offering
and sale of the Securities. Any preliminary
prospectus supplement to the Base Prospectus that describes the
Securities and the offering thereof and is used prior to filing of
the Prospectus is called, together with the Base Prospectus, a
“preliminary prospectus.” The term
“Prospectus” shall mean the final prospectus supplement
relating to the Securities, together with the Base Prospectus, that
is first filed pursuant to Rule 424(b) under the Securities Act
after the date and time that this Agreement is executed and
delivered by the parties hereto but shall not include any free
writing prospectus (as such term is used in Rule 405 under the
Securities Act). Any Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act; any reference to
any amendment or supplement to any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such preliminary prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), and incorporated by
reference in such preliminary prospectus or Prospectus, as the case
may be. The Company also has prepared and filed (or will file) with
the Commission the Issuer Free Writing Prospectuses (as defined
below) set forth on Schedule II hereto. All references in this
Agreement to the Registration Statement, a preliminary prospectus,
the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“EDGAR”).
2. Agreements to Sell and
Purchase . On the basis of the representations and warranties
contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company the principal amount of Floating Rate Notes set forth
opposite the name of such Underwriter in Schedule I hereto, at
99.75% of the principal amount thereof, and the principal amount of
Fixed Rate Notes set forth opposite the name of such Underwriter in
Schedule I hereto, at 99.602% of the principal amount thereof
(each, a “Purchase Price”), plus accrued interest
thereon, if any, from September 12, 2006 to the date of
payment and delivery.
3. Terms of Public Offering .
The Company is advised by you that the Underwriters propose
(i) to make a public offering of their respective portions of
the Securities as soon after the execution hereof as practicable
and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus.
4. Delivery and Payment .
Delivery to the Underwriters of, and payment for, the Securities
shall be made at 10:00 a.m., New York City time, on the fifth
business day unless otherwise permitted by the Commission pursuant
to Rule 15c6-1 of the Exchange Act (the “Closing
Date”), following the date of the initial public offering, at
such place as you shall designate.
Certificates for the Securities
shall be registered in such names and issued in such denominations
as you shall request in writing not later than two full business
days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 a.m., New York
City time, on the business day next preceding the
Closing
2
Date. Certificates in definitive form evidencing
the Securities shall be delivered to you on the Closing Date for
the respective accounts of the several Underwriters, against
payment of the Purchase Price therefor by wire payable in Federal
(same-day) funds to the order of the Company.
5. Agreements of the Company
. The Company agrees with you:
(a) To file the Prospectus with the
Commission pursuant to Rule 424(b)(5) not later than the second
business day following the execution and delivery of this
Agreement.
(b) During the period beginning at
the Time of Sale (as defined below) and ending on the later of the
Closing Date or such date as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be
delivered in connection with sales by an Underwriter or dealer,
including in circumstances where such requirement may be satisfied
pursuant to Rule 172 (the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration
Statement, the Disclosure Package (as defined below) or the
Prospectus (including any amendment or supplement through
incorporation by reference of any report filed under the Exchange
Act), the Company shall furnish to the Representatives for review a
copy of each such proposed amendment or supplement, and the Company
shall not file or make or use any such proposed amendment or
supplement to which the Representatives reasonably
object.
(c) If, during the Prospectus
Delivery Period, any event or development shall occur or condition
exist as a result of which the Disclosure Package or Prospectus as
then amended and supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstance
under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document
incorporated by reference in the Disclosure Package or the
Prospectus, in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if
in the opinion of the Representatives it is otherwise necessary to
amend or supplement the Registration Statement, the Disclosure
Package or the Prospectus, or to file under the Exchange Act any
document incorporated by reference in the Disclosure Package or the
Prospectus, or to file a new registration statement containing the
Prospectus, in order to comply with law, including in connection
with the delivery of the Prospectus, the Company agrees to
(i) notify the Representatives of any such event or condition
and (ii) promptly prepare (subject to paragraph
(b) above), file with the Commission (and use its best efforts
to have any amendment to the Registration Statement or any new
registration statement to be declared effective) and furnish at its
own expense to the Underwriters and to dealers, amendments or
supplements to the Registration Statement, the Disclosure Package
or the Prospectus, or any new registration statement, necessary in
order to make the statements in the Disclosure Package or the
Prospectus as so amended or supplemented, in light of the
circumstances then prevailing or under which they were made, not
misleading or so that the Registration Statement, the Disclosure
Package or the Prospectus, as amended or supplemented, will comply
with law.
3
(d) The Company will prepare a final
term sheet containing only a description of the Securities, in a
form approved by the Representatives, and will file such term sheet
pursuant to Rule 433(d) under the Securities Act within the time
required by such rule (such term sheet, the “Final Term
Sheet”). Any such Final Term Sheet is an Issuer Free Writing
Prospectus for purposes of this Agreement.
(e) The Company represents that
(other than the Final Term Sheet) it has not made, and agrees that,
unless it obtains the prior written consent of the Representatives,
it will not make, any offer relating to the Securities that would
constitute an issuer free writing prospectus as defined in Rule 433
of the Securities Act (each, an “Issuer Free Writing
Prospectus”) or that would otherwise constitute a “free
writing prospectus” as defined in Rule 405 of the Securities
Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives
shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule II hereto. Any such free writing
prospectus consented to by the Representatives is hereinafter
referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (i) it has treated and will treat, as
the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, and (ii) has complied or will
comply, as the case may be, with the requirements of Rules 164 and
433 of the Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the
Commission, legending and record keeping. The Company consents to
the use by any Underwriter of (i) a free writing prospectus
that contains no “issuer information” (as defined in
Rule 433(h)(2) under the Securities Act) that was not included
(including through incorporation by reference) in the Prospectus or
a previously filed Issuer Free Writing Prospectus, (ii) any
Issuer Free Writing Prospectus listed on Schedule II, or
(iii) (x) information describing the preliminary terms of
the Securities or their offering or (y) information that
describes the final terms of the Securities or their offering and
that is included in the Final Term Sheet.
(f) To advise you promptly and, if
requested by you, to confirm such advice in writing, (i) of
any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or the
Disclosure Package or for additional information, (ii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such
purposes, and (iii) of the happening of any event during the
Prospectus Delivery Period below which makes any statement of a
material fact made in the Registration Statement or the Prospectus
untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. To prepare and file with the
Commission, promptly upon your reasonable request, any amendment or
supplement to the Registration Statement, the Base Prospectus, the
Prospectus or the Disclosure
4
Package which may be necessary or
advisable in connection with the distribution of the Securities by
you, and to use its best efforts to cause any such post-effective
amendment to the Registration Statement to become promptly
effective. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal
or lifting of such order at the earliest possible time.
(g) To furnish to you, without
charge, signed copies of the Registration Statement as first filed
with the Commission and of each amendment to it, including all
exhibits, and to furnish to you such number of conformed copies of
the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(h) During the Prospectus Delivery
Period, to furnish to each Underwriter and dealer as many copies of
the Base Prospectus and the Prospectus (each as amended or
supplemented) as such Underwriter or dealer may reasonably
request.
(i) Prior to any public offering of
the Securities, to cooperate with you and counsel for the
Underwriters in connection with the registration or qualification
of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in
effect so long as required for distribution of the Securities and
to file such consents to service of process or other documents as
may be necessary in order to effect such registration or
qualification, provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is
not so qualified or take any action that would subject it to
service of process in suits other than those arising out of the
offering or sale of the Securities in any jurisdiction where it is
not now so subject.
(j) To make generally available to
its security holders as soon as reasonably practicable an earnings
statement covering a period of at least twelve months after the
effective date of the Registration Statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule
158 under the Securities Act.
(k) If at any time during such
period the Company ceases to file reports with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, during
the period of five years after the date of this Agreement,
(i) to mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of its Securities a
financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to
include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a
consolidated statement of changes in stockholders’ equity as
of the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified
by independent certified public accountants, and (ii) to mail
and make generally available as soon as reasonably practicable
after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to such holders, a
5
consolidated balance sheet, a
consolidated statement of operations and a consolidated statement
of cash flows (and similar financial reports of all unconsolidated
subsidiaries, if any) as of the end of and for such period, and for
the period from the beginning of such year to the close of such
quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(l) During the period referred to in
paragraph (k), to furnish to you as soon as available a copy of
each report or proxy statement of the Company mailed to the
security holders of the Company or filed with the Commission and
such other publicly available information concerning the Company
and its subsidiaries as you may reasonably request.
(m) To pay all costs, expenses, fees
and taxes incident to (i) the preparation, printing, filing
and distribution under the Securities Act of the Base Prospectus,
each preliminary prospectus and all amendments and supplements to
any of them prior to or during the Prospectus Delivery Period, any
Issuer Free Writing Prospectus and the Disclosure Package,
(ii) the printing and delivery of the Prospectus and all
amendments or supplements to it during the Prospectus Delivery
Period, (iii) the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws
of the several states (including in each case the fees and
disbursements of counsel for the Underwriters relating to such
registration or qualification and memoranda relating thereto),
(iv) filings and clearance with the National Association of
Securities Dealers, Inc. in connection with the offering,
(v) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be
requested for use in connection with the offering or sale of the
Securities by the Underwriters or by dealers to whom Securities may
be sold, (vi) the rating agencies in connection with the
rating of the Securities and (vii) the preparation, issuance,
execution, authentication and delivery of the Securities, including
any expenses of the Trustee.
(n) During the period beginning on
the date hereof and continuing to and including the Closing Date,
not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the Securities
(other than (i) the Securities and (ii) commercial paper
issued in the ordinary course of business), without your prior
written consent.
(o) To apply the net proceeds from
the sale of the Securities in the manner described under the
caption “Use of Proceeds” in the Prospectus.
(p) To use its best efforts to do
and perform all things required or necessary to be done and
performed under this Agreement by the Company prior to the Closing
Date and to satisfy all conditions precedent to the delivery of the
Securities.
6
6. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter that:
(a) The Company meets the
requirements for use of Form S-3 under the Securities Act. The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and, to the best of the Company’s knowledge, no
proceedings for such purpose are pending before or threatened by
the Commission. No order preventing the use of any preliminary
prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission.
(b) (i) At the time of filing
the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance
on the exemption of Rule 163, the Company was a “well-known
seasoned issuer” as defined in Rule 405, including not having
been an “ineligible issuer” as defined in Rule
405.
(c) The Registration Statement is an
“automatic shelf registration statement” as defined in
Rule 405, that initially became effective within three years of the
date hereof.
(d) The Company has not received
from the Commission any notice pursuant to Rule 401(g) objecting to
the use of the automatic shelf registration statement form. If at
any time during the Prospectus Delivery Period the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) or
otherwise ceases to be eligible to use the automatic shelf
registration statement form, the Company will (i) promptly
notify the Representatives, (ii) promptly file a new
registration statement or post-effective amendment on the proper
form relating to the Securities, in a form satisfactory to the
Representatives, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared
effective as soon as practicable, and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all
other action necessary or appropriate to permit the public offering
and sale of the Securities to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2)
notice or for which the Company has otherwise become ineligible.
References herein to the Registration Statement shall include such
new registration statement or post-effective amendment, as the case
may be.
(e) The Company agrees to pay the
required Commission filing fees relating to the Securities within
the time required by Rule 456(b)(1) without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and
457(r).
(f) (i) At the respective times
the Registration Statement and any post-effective amendment thereto
became or becomes effective prior to the Closing Date, neither the
Registration Statement nor such amendment included or will include
an untrue statement of a material fact or omitted or will omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as
7
amended or supplemented, if
applicable, as of the date such amendment becomes effective or such
supplement is filed with the Commission, as the case may be, will
comply in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, as of the date such
amendment becomes effective or such supplement is filed with the
Commission, as the case may be, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph
(f) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein, it being understood and
agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information described as such in
Section 8 hereof, and (iv) the documents incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3
under the Securities Act, at the time they were or hereafter are
filed with the Commission prior to the Closing Date, complied and
will comply in all material respects with the requirements of the
Exchange Act, and, when read together and with the other
information in the Prospectus, as of the date of the Prospectus and
at all times subsequent thereto up to the Closing Date, did not and
will not contain an untrue statement of material fact or did not
and will not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(g) The term “Disclosure
Package” shall mean (i) the Base Prospectus, including
the preliminary prospectus supplement dated September 5, 2006,
as amended or supplemented at the Time of Sale (as defined below),
and (ii) the Issuer Free Writing Prospectuses, if any,
identified on Schedule II hereto. As of the Time of Sale, the
Disclosure Package did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof. As used in this paragraph and elsewhere in
this Agreement “Time of Sale” shall mean 5:00 p.m. on
September 5, 2006.
(h) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated by reference therein that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof.
8
(i) The Company has not distributed
and will not distribute, prior to the later of the Closing Date and
the completion of the Underwriters’ distribution of the
Securities, any offering materials in connection with the offering
and sale of the Securities other than a preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus reviewed and
consented to by the Representatives and included in Schedule II
hereto.
(j) The Company and each of its
subsidiaries that is a “Significant Subsidiary” within
the meaning of such term as defined in Rule 1-02 of Regulation S-X
of the Commission (the “Significant Subsidiaries”) is
validly existing as a corporation (or, in the case of Capital One
Bank, as a bank chartered under the laws of Virginia, in the case
of Capital One, F.S.B., as a federal savings bank chartered under
the federal laws of the United States, and, in the case of Capital
One, National Association as a national banking association
organized under the laws of the United States) in good standing
under the laws of its jurisdiction of incorporation and has in all
material respects the corporate power and authority to operate its
business as it is currently being conduc
